Citation Nr: 22015482 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 18-26 494 DATE: March 17, 2022 REMANDED The issue of an initial rating higher than 10 percent from September 23, 2005 to December 13, 2005; an increased rating higher than 20 percent from December 14, 2005 to February 2, 2012; and an increased rating higher than 40 percent from February 3, 2012 and continuing thereafter for a lumbar spine disorder, to include discogenic disease L5-S1, mild degenerative change, spondylotic change, multilevel degenerative change, and degenerative disc disease is remanded. The issue of a total disability rating based on individual unemployability (TDIU) due to service-connected disorders from September 23, 2005 to April 2, 2018 is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from September 1979 to June 1986 and U.S. Army National Guard from February 2003 to February 2004, to include service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision of the San Juan, Puerto Rico Regional Office (RO). In November 2021, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. The Veteran is in receipt of a TDIU effective April 3, 2018. Lumbar spine disorder and TDIU The matters are remanded for the following actions: 1. BACKGROUND FOR THE RO ADJUDICATOR The claims for a higher initial and increased rating for the Veteran's lumbar spine disorder are remanded under DeLuca v. Brown, 8 Vet. App. 202 (1995), Jones v. Shinseki, 23 Vet. App. 382 (2010), Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran had three VA examinations during the rating period February 2012, October 2017, and July 2018. Additionally, the Veteran's last VA examination was in July 2018 and the Veteran's most-recent VA treatment records suggest that his lumbar spine disorder may have worsened. The February 2012 and July 2018 VA examinations were inadequate under Correia because the examiners did not conduct range of motion testing on active and passive motion, did not address if there was pain on weight-bearing and non-weight bearing, did not indicate the degree at which pain begins during each range of motion, and did not estimate the degrees of range of motion lost during flare-ups and following repeated use over time. All three VA examinations were inadequate under Sharp and Jones. During the February 2012 VA examination, the Veteran reported flare-ups but the examiner did not indicate whether there was additional functional loss with flare-ups and did not explain why such information was absent from the examination. The October 2017 and July 2018 VA examiners did not explain why they did not provide a non-speculative range of motion estimate following repetitive use and/or during flare-ups. The October 2017 and July 2018 VA examinations were inadequate under DeLuca because the examiners did not consider whether any pain, weakness, fatigability, or incoordination significantly limited functional ability with repetitive use and flare-ups. The claim for a TDIU from September 23, 2005 to April 2, 2018 is remanded under Harper v. Wilkie, 30 Vet. App. 356 (2018) and Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009). In the October 2018 rating decision, the RO granted a TDIU effective April 3, 2018. However, the grant of TDIU did not encompass the entire appellate period September 23, 2005 and continuing thereafter for the initial and increased rating claim as to the Veteran's lumbar spine disorder. Therefore, the grant of TDIU was a partial grant and the remaining period September 23, 2005 to April 2, 2018 remained in appellate status. Additionally, the claim for a TDIU is inextricably intertwined with the claims for a higher initial and increased rating as to the Veteran's lumbar spine disorder. THE REMAND DIRECTIVES FOLLOW. 2. Schedule the Veteran for a VA thoracolumbar spine examination to assist in determining the current severity of his lumbar spine disorder. Ask the examiner to review the evidence and express FULLY EXPLAINED retrospective opinions as to the following: Did the Veteran have additional functional loss with flare-ups during the February 2012 VA examination. Estimate range of motion measurements for active, passive, weight-bearing, and non-weight bearing during the February 2012 and July 2018 VA examinations. Did the Veteran have pain on weight-bearing and non-weight bearing during the February 2012 and July 2018 VA examinations. Estimate the degree at which pain begins during each range of motion during the February 2012 and July 2018 VA examinations. Estimate range of motion during flare-ups and following repetitive use over time during the February 2012, October 2017, and July 2018 VA examinations. Did the Veteran have any pain, weakness, fatigability, or incoordination that significantly limited functional ability with repetitive use and flare-ups during the October 2017 and July 2018 VA examinations. IF THE EXAMINER IS UNABLE TO PROVIDE A RETROSPECTIVE OPINION, HE OR SHE SHOULD CLEARLY EXPLAIN SO IN THE REPORT. THE EXAMINER MUST REVIEW THE ENTIRE RECORD IN CONJUNCTION WITH RENDERING THE REQUESTED RETROSPECTIVE OPINIONS. SPECIAL ATTENTION SHOULD BE PAID TO: The February 2012 VA examination reflecting the Veteran's report of lower back symptoms, flare-ups, initial range of motion measurements, and post-repetitive use range of motion measurements. The October 2017 VA examination reflecting the Veteran's report of flare-ups, functional loss, initial range of motion measurements, and the examiner's notation that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use and during flare-ups. The July 2018 VA examination reflecting the Veteran's report of flare-ups, lack of reporting functional loss, initial range of motion measurements, and the examiner's notation that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use and during flare-ups. 3. The RO will then readjudicate the claims for a higher initial and increased rating for a lumbar spine disorder and the claim for a TDIU. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.